By Kevin McEwan, Esq.
DISCLAIMER: I am not a medical doctor. Nothing in this article is intended to be or should be taken as medical advice. As discussed below, addressing the concerns on this topic are going to be fact based to specific cases, thus this article is not intended to and does not constitute legal advice.
With the world working on a gradual lockdown related to the COVID-19 virus, workers are now claiming to have contracted the virus from work. What does this mean to employers? Is it industrial and compensable?
With the lock down taking place and employers sending employees home, there will emerge two distinct groups of potential claimants. Those sent home unable to work and are reacting to the panic and stress of loss of income, and those still employed with continued exposure. Categorizing the potential claims will help with the assessment of how to handle the claims and assert defenses, and the timing and reasons for denials. In the former category, these are the most likely candidates for an early and decisive denial. In the latter category of those still working and exposed to the general public there is an underlying potential for stress claims due to perceived dangers of working in potentially infectious environments; or cumulative claims in the case of physical laborer in specific industries, i.e. stockers in the grocery industry working under pressure and high physical demands to keep shelves stocked. For the purposes of this article however, I will only be addressing the potential claims of actually contracting the virus itself.
From a California workers’ compensation perspective, it is a question of causation. Did the worker get the virus from their duties of preforming their job? In California, the applicant does have some leeway in this regard. They do not have to pinpoint a specific date on which they contracted it. However, they will have to prove that their circumstances of employment were beyond the exposure of the general public, or in other words, did their job put them at greater risk for the exposure.
The arguments and challenges to defend against such a claim are going to be highly factual and related to specific cases and specific injuries. Those in the medical field are much more likely to be able to prove industrial causation for contracting COVID-19, as they are exposed on a greater basis depending on their positions.
The first hurdle in these cases for an applicant is proving the injury and of itself. Have they actually tested positive for the virus, or are they merely making assumptions? Without a positive test for the virus, how can the applicant prove that they got the virus from work if they may not even have the virus? The gap between symptoms/pre-test claims and positive test results, “knowledge,” is also something to consider when dealing with timely denials.
If the applicant actually tests positive, the next hurdle is that they must now show that their employment placed them at greater risk. As mentioned above, specific industries clearly put workers at greater risk, such as healthcare workers and first responders. Other industries such as retail and businesses dealing with the general public might put them more at risk due to the extensive number of different people that they work with throughout the day. However, the general interaction with the public is theoretically the same that would occur for those people on a daily basis outside of work. Thus, there would have to be some other factors that would impact the causation.
Potential other factors could be that the employee’s required job duties include travel to impacted communities (particularly where the travel may involve staying over night), the type of industry and any direct connections to first responders and medical personnel, if there are confirmed cases in fellow employees, and the specifics of the job duties. Particularly, the timing of the symptoms and diagnosis of the virus in relation to the travel or other factors increasing the risk. Where a fellow employee has tested positive and other employees worked with the infected employee in close proximity (remember that an infected person can be contagious for days before symptoms begin to show).
With regard to other employees testing positive for the virus, businesses need to do all that they can with preventative measures in order to minimize the potential spread. It is being reported that researchers have found that the virus can last up to 24 hours on cardboard and 2 to 3 days on plastic and stainless steel. Frequent scheduled cleanings of work surfaces, bathrooms, door handles, increasing the availability of hand sanitizing stations, and potential additional personal protective equipment are examples of some measures. By taking such measures, employers would now have an argument that it is much more unlikely that the applicant may have contracted it through work due to the extensive measures taken. Additionally, taking steps in accordance with the Center for Disease Control and State and local public health agencies would help in staving off any potential Serious and Willful claims that could come along with the underlying workers’ compensation claim.
It is still early in this crisis and thus difficult to assess what potential permanent disability could be the result of an industrial case of COVID-19 is found. With the information now available there does not seem to be significant risk for any ratable permanent disability except in extreme cases with people in the “at risk” group. However, for employees in those groups, the consequences can be severe. Outside of the permanent disability indemnity aspects, there would seem to be minimal temporary disability benefits associated with an industrial case. The majority of costs associated with an industrial incident would most likely be the medical care. This would be somewhat low in general non severe cases. However, in the more severe cases, the costs could be substantial, running into the tens of thousands if not in the hundreds of thousands, should the worker require an ICU stay.
Given the recent mandates throughout the country, California in particular, with closing restaurants and bars except for take out and the recent San Francisco mandate to shelter in place, the potential for industrial cases outside of the medical profession is becoming less and less likely.
The main takeaway at this point is, it is much too early to know the full extent of the potential of an industrial case of COVID-19. However, doing all that you can with preventative measures, especially with employees in the “at risk” group, will aid in the overall fight against the virus and place your business in the best position to avoid an industrial case.
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